Glenn Beckendorff, in His Official Capacity as Waller County Judge, Frank Pokluda, in His Official Capacity as Waller County Precinct Two Commissioner, and Stan Kitzman, in His Official Capacity as Waller County Precinct Four Commissioner v. City of Hempstead, Texas, Citizens Against the Landfill in Hempstead, Pintail Landfill, LLC, and Waller County, Texas

Summarize
Check Treatment

Related Cases

ACCEPTED 14-15-00322-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/8/2015 1:54:10 PM CHRISTOPHER PRINE CLERK NO. 14-15-00322-CV _____________________________________________________________ FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FOURTEENTH DISTRICT OF TEXAS 6/8/2015 1:54:10 PM AT HOUSTON, TEXAS CHRISTOPHER A. PRINE _____________________________________________________________ Clerk GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY AS WALLER COUNTY JUDGE Appellants V. CITY OF HEMPSTEAD, TEXAS AND CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD Appellees _____________________________________________________________ On Appeal from the 506TH Judicial District Court of Waller County, Texas Honorable Terry Flenniken, Presiding MOTION TO DISMISS ______________________________________________________________ TO THE HONORABLE FIRST OR FOURTEENTH1 COURT OF APPEALS: Appellee, the City of Hempstead, Texas moves to dismiss the appeal. I. Background Appellants, Glenn Beckendorff, in his official capacity as Waller County Judge, Frank Pokluda, in his official capacity as Waller County Precinct Two 1 Pursuant to the courts’ local rules, this case should have been assigned to the First Court of Appeals. A motion to transfer was filed 3 June 2015. 1 Commissioner, and Stan Kitzman, in his official capacity as Waller County Precinct Four Commissioner, appeal from the trial court’s judgment signed 20 February 2015. In the underlying lawsuit, the parties were as follows: Plaintiff: City of Hempstead Plaintiff-Intervenor: Citizens Against the Landfill in Hempstead (“CALH”) Defendants: Waller County; Glenn Beckendorff, in his official capacity as Waller County Judge; Frank Pokluda, in his official capacity as Waller County Commissioner; Stan Kitzman, in his official capacity as Waller County Commissioner; Jeron Barnett, in his official capacity as Waller County Commissioner; John Amsler, in his official capacity as Waller County Commissioner; and Pintail Landfill, LLC. After a jury trial, the parties entered into a settlement agreement that included an agreed judgment. All parties moved for the trial court to enter the agreed judgment. At the time the trial court entered judgment, Beckendorff, Pokluda, and Kitzman, had been succeeded in office by the current Waller County elected officials. See Exhibit A (Copy of the Waller County website listing its elected officials). 2 The trial court entered judgment on 20 February 2015. Exhibit B. A timely filed motion for new trial was not filed. Beckendorff filed his notice of appeal more than 30 days later on 6 April 2015. Exhibit C. Kitzman and Pokluda filed their notices of appeal on 15 April 2015. Exhibit D. As the facts above show, there are three grounds for dismissal: 2 The City of Hempstead requests this Court take judicial notice of the elected officials. The facts are generally known within the trial court’s territorial jurisdiction. 2 • The notices of appeal were not timely. • Appellants are no longer the officials for Waller County and therefore have no standing to appeal. • Appellants entered into a settlement agreement and agreed judgment. They have waived the right to appeal. II. This Court lacks jurisdiction because no timely notice of appeal was filed. Appellant Beckendorff’s notice of appeal was not timely. A timely notice of appeal is a jurisdictional prerequisite to appeal. See Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., Inc., 377 S.W.3d 40, 42–43 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 35 (Tex. App.— Houston [14th Dist.] 2000, pet. denied). Absent a timely-filed motion for new trial (or other proper post-trial filing, see Tex. R. App. P. 26.1(a)), a notice of appeal is due 30 days after the judgment is signed. Tex. R. App. P. 26.1. A motion for extension of time may be filed within 15 days of the date the notice of appeal was due. See Tex. R. App. P. 26.3. However, the appellant must “compl[y] with Rule 10.5(b) by, inter alia, providing a reasonable explanation for the late filing.” Brown Mech., 377 S.W.3d at 42–43 (citing Tex. R. App. P. 26.3, 10.5(b); Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997)). The failure to provide a reasonable explanation will result in dismissal. See Walker v. Walker, No. 01-11-00232-CV, 2013 WL 105302, at *2 (Tex. App.—Houston [1st Dist.] Jan. 3, 2013, no pet.) (mem. op.). 3 A reasonable explanation is “any plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.” Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 84 (Tex. 1977)). The court views the explanation liberally, and “[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance ....” Hone, 104 S.W.3d at 886–87 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989)). In this case, the trial court signed the Judgment on 20 February 2015. Thirty days later, 22 March 2015, fell on a Sunday. Notice of appeal was therefore due on 23 March 2015. Beckendorff did not file his notice of appeal until 6 April 2015, the last day available to file a motion for extension of time. Beckendorff also filed a motion for extension of time to file his notice of appeal. The motion for extension of time, however, fails to provide a reasonable explanation. The motion is accompanied by two affidavits, Beckendroff’s and his counsel’s. Counsel’s affidavit is silent concerning the reason for filing the notice of appeal late. In his affidavit, Beckendorff states that his attorney became aware of the 20 February Judgment on 11 March. At that time there were still 12 days to file a notice of appeal. No explanation is given for the failure to act within the 12 days. Because no reasonable explanation is given, despite actual notice of the judgment with 12 days left to file a 4 notice of appeal, Beckendorff’s motion for extension of time fails to comply with Rules 10.5(b) and 26.3. Beckendorff’s notice of appeal is, therefore untimely. This Court must dismiss for lack of jurisdiction. Appellants Pokluda and Kitzman’s notice of appeal is therefore also untimely. Pokluda and Kitzmann filed their notice of appeal on 15 April, well after the 23 March filing deadline, and also outside of the 15 day window for filing a motion for extension. However, under Rule 26.1(d), a party may file a notice of appeal outside of the normal time frame if it is filed “14 days after the first filed notice of appeal” so long as the first notice of appeal was timely. Tex. R. App. P. 26.1(d). Because Beckendorff’s notice was not timely, Pokluda and Kitzman’s notice is not either. Therefore, this Court must dismiss their appeals for lack of jurisdiction. III. Appellants lack standing because they are no longer the elected officials of Waller County. A suit against a governmental official in his official capacity is another way of pleading a suit against the governmental entity. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009) (citing Brandon v. Holt, 469 U.S. 464, 471–72, 105 S. Ct. 873 (1985) (“[A] judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond.”); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex.2007) (“It is fundamental that a suit against a state official is merely ‘another way of pleading an action against the entity of which [the official] 5 is an agent.’ ”) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099 (1985)). When a public officer is a party in an official capacity to an appeal or original proceeding, and if that person ceases to hold office before the appeal or original proceeding is finally disposed of, the public officer's successor is automatically substituted as a party if appropriate. Proceedings following substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. Substitution may be ordered at any time, but failure to order substitution of the successor does not affect the substitution. Tex. R. App. 7.2(a) (“Automatic Substitution of Officer”); see Abbott v. G.G.E, 03-11-00338-CV, 2015 WL 1968262, at *1 n.1 (Tex. App.—Austin Apr. 30, 2015, no. pet. h.) (automatic substitution of successors to “former Governor, Commissioners of HHSC and DADS, and the former Directors of the Austin and Mexia SSLCs”); City of Houston v. Strouse, No. 14-10-00239-CV, 2011 WL 304185, at *1 n.1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem. op.) (automatic substitution of newly appointed chief of police in suit against former chief in his official capacity). Because the individuals named as appellants are no longer the elected officials of Waller County, they have no standing to pursue this appeal. The current officials are the proper parties. This Court should dismiss or, alternatively, substitute the proper officials. 6 IV. Appellants may not appeal a judgment to which they agreed and which they requested the trial court enter. “Generally, a party who files a motion for rendition of a judgment waives its right to complain about that judgment.” Exch., Inc. v. Long., 821 S.W.2d 265, 275 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984)). A party who moves for judgment and does not reserve the right to complain may not take a position on appeal inconsistent with that part of the judgment it requested. See Hooks v. Samson Lone Star, Ltd. P’ship, No. 12-0920, 2015 WL 393380, at *11 (Tex. Jan. 30, 2015) (citing Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005); Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321–22 (Tex. 1984)). The lawyers representing Waller County and its elected officials in their official capacity signed an agreed judgment and joined in a motion for entry of that judgment. Exhibit B, Exhibit E. There was no indication that Waller County or its elected officials disagreed with the judgment or intended to appeal any portion of that judgment. See Exhibit B, Exhibit E. Appellants did not appear or object during the hearing on the motion for entry of judgment. Therefore, the elected officials of Waller County in their official capacity have waived the right to complain of the agreed judgment on appeal. See Hooks, 2015 WL 393380, at *11; Long, 821 S.W.2d at 275. 7 PRAYER The City of Hempstead respectfully requests this Court dismiss this appeal. Respectfully submitted, OLSON & OLSON, L.L.P. By: /s/ Eric C. Farrar Eric C. Farrar State Bar No. 24036549 efarrar@olsonllp.com Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Telephone: (713) 533-3800 Facsimile: (713) 533-3888 ATTORNEYS FOR APPELLEE 8 CERTIFICATE OF CONFERENCE The undersigned conferred appellate counsel of record as follows: David Carp, counsel for appellants – letter faxed and emailed on 15 May; email on 3 June. Counsel for appellants has not indicated whether appellants oppose this motion or not. Brent Ryan, counsel for Pintail Laindfill, LLC – email on 3 June and phone call on 5 June. Counsel for Pintail has not indicated whether Pintail opposes this motion or not. Elton Mathis, counsel for Waller County, county judge, in his official capacity, and county commissioners, in their official capacities, indicated that he agrees to the relief sought in this motion. Blayre Pena, counsel for CALH, indicated that CALH agrees to the relief requested. /s/ Eric C. Farrar Eric C. Farrar 9 CERTIFICATE OF SERVICE I hereby certify that on June 5, 2015 a true and correct copy of the foregoing Notice of Appearance of Appellate Counsel for Appellee was served via e-service: David A. Carp Ms. Carol Chaney Herzog & Carp Law Office of Carol A. Chaney 427 Mason Park Boulevard 820 13th Street Katy, Texas 77450 P.O. Box 966 Facsimile (713) 781-4797 Hempstead, Texas 77445 Facsimile (979) 826-6637 Attorney for Appellant E-Mail: carol.chaney@thechaneyfirm.net Attorneys for Citizens Against the Landfill in Hempstead Mr. Brent W. Ryan Ms. V. Blayre Pena McElroy, Sullivan, Miller, Hance Scarborough, LLP Weber & Olmstead, L.L.P. 400 W. 15th Street, Suite 950 P.O. Box 12127 Austin, Texas 78701 Austin, Texas 78711 Facsimile (512) 482-6891 Facsimile (512) 327-6566 E-Mail: bpena@hslawmail.com E-Mail: bryan@msmtx.com Attorneys for Citizens Attorney for Pintail Landfill, LLC Against the Landfill in Hempstead Elton R. Mathis, Jr. Waller County District Attorney Ruhee G. Leonard Assistant District Attorney 645 12th Street Hempstead, Texas 77445 Facsimile: (979) 826-7722 E-Mail: e.mathis@wallercounty.us Attorney for Waller County, Texas /s/ Eric C. Farrar Eric C. Farrar 10 UNSWORN DECLARATION OF ERIC C. FARRAR My name is Eric Clayton. Farrar, my date of birth is 30 October 1970, and my address is 1304 W. Gray St., #527, Houston, Texas, 77019, United States of America. I declare under penalty of perjury that the following statements are true and correct. 1. Exhibit A is a true and correct copy of a printout of Waller County’s website. 2. Exhibit B is a true and correct copy of the agreed judgment in this cause. 3. Exhibit C is a true and correct copy of appellant Beckendorff’s notice of appeal. 4. Exhibit D is a true and correct copy of appellants Kitzman and Pokluda’s notice of appeal. 5. Exhibit E is a true and correct copy of the joint motion for entry of judgment filed with the trial court in this cause. Executed in Harris County, State of Texas, on the 5th day of June, 2015. /s/ Eric C. Farrar Eric C. Farrar Declarant 11 6/4/2015 default.aspx.html 1-1o1nc 1CuntJcl Us Search v J s Home F'~nancial Transparency Elected Officials Co' tact List Public Information Request Waller County Elected Officials Contact list Elected Officials Contact List Commissioner Pet 1 John A. Amsler 0 - 979-826-7700 Public Notices, News & Forms P 0 Box 648 F -979-826-2112 County Offices Hempstead, Tx. 77445 District Court Commissioner Pet 2 Russell Klecka 0 - 979-826-7700 Other County Offices 25442 Curtis Rd F -979-826-2112 Employment Opportunities Waller, Tx 77484 Commissioner Court Videos/Archives Commissioner Pet 3 Jeron Barnett 0 - 979-826-7700 Minutes P 0 Box 2846 12620 FM 1887 F -979-826-2112 Waller County Sub-Regional Prairie View, Tx. Hempstead, TX Planning Commission 77446 77445 Landfill Related Information Commissioner Pet 4 Justin Beckendorff 0-281-375-5231 Contribution & Expense Reports P 0 Box 7 3410 First St. F- 281-375-7751 Independent School District Pattison, Tx 77466 Pattison, TX 77466 Libraries Constable, Pet. 1 Bo Hashaw 0 - 979-826-3357 Museums 846 6th St. Ste 1 Hempstead, Tx 77445 Geographical Constable, Pet 2 Glenn White 0-936-931-1914 History 27390 Fieldstore Rd F - 936-372-9234 Calendar Waller, Tx 77484 Justice of the Peace Constable, Pet 3 Herschel Smith 0 - 979-826-7635 Waller County Ordinances 12620 FM 1887 F -979-826-7639 Animal Control Hempstead, Tx 77445 Estray Livestock Constable, Pet 4 Joel Trimm 0 281-375-5233 Road and Bridge P 0 Box 389 3410 First St. Recycle Center Pattison, Tx 77466 Pattison, TX 77466 Veteran's Office County Clerk Debbie Hollan 0 • 979·826-7711 Section 3 Information Room 217 -Main Ofc 836 Austin St. Hempstead F- 979-826-7771 Room 213 - Civil Hempstead, TX 77445 County Court at Law June Jackson - 0 - 979-826-7763 Judge Room 216 836 Austin St. F- 979-826-9119 Hempstead, TX 77445 County Judge Trey Duhon -Judge 0 - 979-826-7700 Room 203 836 Austin St. F- 979-826-2112 Hempstead, TX 77445 Elton Mathis-District District Attorney 0-979-826-7718 Attorney 645 12th Street F - 979-826-7722 Hempstead, Tx 77445 file:/1/C :IU sers/efarrar /D ocuments/default.aspx. htm I 1/2 EXHIBIT A 6/4/2015 default.aspx.html District Clerk Liz Pirkle, District Clerk 0 • 979-826-7735 Room 318 836 Austin St. F - 979-826-7738 Hempstead, TX 77445 506th District Judge A M McCaig -Judge 0-979-921-0921 Room 307 836 Austin St. F - 979-826-9149 Hempstead, TX 77445 Justice of the Peace Charles Karisch-Judge 0-979-826-7745 Precinct 1 846 6th St. Ste 1 F - 979-826-7748 Hempstead, Tx 77445 Justice of the Peace Delores Hargrave-Judge 0-936-372-2193 Precinct 2 27388 Fieldstore Rd F - 936-931-5206 Waller, Tx 77484 Justice of the Peace Marian Jackson-Judge 0 - 979-826-7637 Precinct 3 12620 FM 1887 F - 979-826-7639 Hempstead, Tx 77445 Justice of the Peace Ted Krenek- Judge 0-281-375-5233 3410 1st St/ P 0 Box 7 Precinct 4 3410 First St. F- 281-375-7757 (Mail) Pattison, Tx 77466 Pattison, TX 77466 Treasurer Joan Sargent 0-979- 826-7707 Room 316 836 Austin St. Hempste~d, TX 77445 F - 979-826-7709 Tax Assessor Ellen Shelburne 979-826-7620 730 9th St Hempstead, Tx 77445 Fax 979-826-7619 Sheriff Glenn Smith 979-826-8282 701 Calvit Street Hempstead, Tx 77445 Fax 979-826-7667 file:/1/C:/Users/efarrar/Documents/default.aspx.html 212 Filed: 41212015 10:57:27 AM Uz Pirkle, Dlstr!ct Clerk Waller County, Texas By: Janie Derrick, Deputy CAUSE NO. 13-03-21872 CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF § Plaintiff, § and § § CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS IN HEMPSTEAD § v. § WALLER COUNTY, TEXAS, et al., § § Defendants. § 506'h JUDICIAL DISTRICT NOTICE OF APPEAL Glenn Beckendorff, in his official capacity as Waller County Judge (Appellant), desires to appeal and hereby files this notice with the Court of Civil Appeals for the First or Fourteenth Judicial District of Texas, sitting at Houston, Texas from the Agreed Final Judgment signed in the above Cause on February 20, 2015, and Appellant desires to appeal from each and every part of said Agreed Final Judgment. Dated: April 2, 2015 Respectfully submitted, By: /s/ David A. Carp David A. Carp TBN: 03836500 Herzog & Carp 427 Mason Park Boulevard Katy, Texas 77450 713.781.7500 Phone 713.781.4797 Fax dcarp@hcmlegal.com Attorneys for Appellant 1 EXHIBIT ___C, CERTIFICATE OF SERVICE I hereby certify that on April 2, 2015 a true and correct copy of the foregoing Notice of Appeal was delivered via e-service to the following: James P. Allison J. Eric Magee Allison, Bass & Magee, LLP A. 0. Watson House 402 W. 12'h Street Austin, Texas 78701 Attorneys for Waller County, Texas and Waller County Commissioners Court Arthur L. Pertile Ill Kelly Dempsey Corey R. Ouslander Olson & Olson, LLP Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Attorneys for City of Hempstead Terry L. Scarborough Michael L. Woodward V. Blayre Pena Hance Scarborough, LLP 400 w 15'h #950 Austin, Texas 78701 Carol A. Chaney Law Office of Carol A. Chaney 820 13'h Street P.O. Box 966 Hempstead, Texas 77445 Attorneys for Citizens Against the Landfill In Hempstead 2 Brent W. Ryan McElroy, Sullivan & Miller, LLP P.O. Box 12127 Austin, Texas 78711 Attorneys for Pintail Landfill, LLC lsi David A. Carp David A. Carp 3 Cause No. 13-03-21872 CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF Plaintiff, § § and § § CITIZENS AGAlNST THE LANDFILL § WALLER COUNTY, TEXAS IN HEMPSTEAD § § v. § § WALLER COUNTY, TEXAS, ET. AL. § Defendants. § 506™ JUDICIAL DISTRICT AGREED FINAL JUDGMENT Before the Court is the above-styled and numbered cause of action. On December 1, 2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the Landfill in Hempstead ("CALH'') appeared through its attorney of record and announced ready for trial. Defendants, Waller County, Texas including the elected officials of the Waller County Commissioners Court, in their official capacities (collectively "Waller County"), appeared in person and by their attorney of record and announced not ready for trial. Defendant, Pintail Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury, consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the case proceeded to trial. Agreed Final Judgment Page 1 The Court, after examining the record and the evidence and argument of counsel, finds that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and the parties in this case, and that the Court has jurisdiction to enter a judgment in this case. At the conclusion of the evidence, the Court submitted the questions of fact in the case to the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2. Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said Motion, the parties represent that they have reached a settlement agreement concerning the jury verdict and the remaining legal and factual issues pending before the Court and have agreed to the entry of final judgment. Accordingly, the Court renders the following Agreed Final Judgment: IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County Ordinance No. 2013-001 is void. IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas, and Pintail Landfill, LLC is void. IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and no cents ($245,000). IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in Hempstead have and recover from Waller County attorneys' fees in the amount of Three Hundred Twenty-Five Thousand Dollars and no cents ($325,000). Agreed Final Judgment Page 2 13 ~tJ? _,?/872- IT IS FURTIIER ORDERED that the total amount of the judgment rendered will bear interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full. Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate, any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in the futnre be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001 and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No. 40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW Permit Application No. 23 77 (Pintail Landfill), and/or (c) all or any part of the 410.3 7 acre facility site described in such Registration and Permit Application. All costs of court spent or incurred in this cause are to be borne by the party incurring same. All writs and processes for the enforcement and collection of this judgment may issue as necessary. All other relief requested in the live pleadings of any party that is not specifically granted is DENIED. This is a final judgment that disposes of all claims and parties. SIGNED thistZ(2 day of __ 7:+ 1 ~- "',&"- vr:- &_"-r_: :~: ;," "'zol5. ""' = TERRY~~~~[}jN <.n ::-,-- rv Agreed Final Judgment Page 3 AGREED AS TO FORM AND SUBSTANCE: ArtPertile Corey R. Ouslander James P. Allison couslander@olsonl!p. com J. Eric Magee OLSON & OLSON, L.L.P. e.magee@allison-bass.com Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP 2727 Allen Parkway 402 W. 12th St. Houston, Texas 77019 Austin, Texas 78701 Phone: (713) 533-3800 Phone: (512) 482-0701 Facsimile: (713)533-3888 Facsimile: (512)480-0902 ATTORNEY OR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY DEFENDANTS By:J.~M~~ V. Blayre Pefia Brent Ryan 0 bpena@hslawmail.com bryan@msmtx.com Hance Scarborough McElroy, Sullivan, Miller, 400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P. Austin,Texas78701 P.O. Box 12127 Phone:512-479-8888 Austin, Texas 78711 Fascimile: 512-482-6891 fax Phone: (512) 327-8111 Facsimile: (512)327-6566 Carol Chaney ATTORNEYS FOR PINTAn, LANDFILL, LLC Carol.chaney@thechaneyfirm.net Law Office of Carol A. Chaney 820 13th Street P.O. Box966 Hempstead, TX 77445 Phone: (979) 826-6660 Fascimile: (979) 826-8989 ATTORNEYS FOR INTERVENORS/CITIZENS AGAINST LANDFILL By: /}{5~~ (/ c Agreed Final Judgment Page 4 rueu r" • • ., r AT o; 07 O'Clock f' M PATRICIA JAMES SPADACHENE BYWALL~ TEXAS DEPUTY CAUSE NO. 13-03-21872 CITY OF HEMPSTEAD, Texas, § IN THE DISTRICT COURT OF Plaintiff § § And § § CITIZENS AGAINST THE LANDFll.L IN § HEMPSTEAD, § Plaintiff Intervenor § § v. § WALLER COUNTY, TEXAS § WALLER COUNTY, TEXAS, COUNTY § mDGB BLENNBECKENDORFF, § COMMISSIONER FRANK POKLUDA, § COMMISSIONER STAN KITZMAN, § COMMISSIONER JERONBARNET, § COMMISSIONER JOHN AMSLER, and § 50611 JUDICIAL DISTRICT PINTAIL LANDFILL, LL.C. § Defendants. § CHARGE OF THE COURT MEMBERS OF THE JURY: After closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room. TI:ris case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed by the instructions in this charge. In discharging your responsibility on this jury, you will observe all the instructions which have previously been given you. I shan now give you additional instructions which you should carefully and strictly follow during your deliberations. Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Intemet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason, without permission from the Court. When you enter the jury room to deliberate, you must surrender your phone and any other electronic device. 1 Any notes you have taken are for your own personal use. You may take your notes back into the jury room and consult them during deliberations, but do not show or read your notes to your fellow jurors during your deliberations. Your notes a:re not evidence. Each of you should rely on your independent recollection of the evidence and not be influenced by the fact that another juror has or has not taken notes. You must leave your notes with the bailiff when you are not deh'berating. I will make sure your notes are kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the baillff will collect your notes, unless you choose to keep them. When you are released from jury duty, the bailiff will promptly destroy your notes, unless you have retained them, so that no one can read what you wrote. Here are the instructions for answering the questions. 1, Do not let bias, prejudice or sympathy play any part in your decision. 2. .Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom. 3. You are to make up your own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony, But on matters of law, you must follow all of my instructions. 4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition. 5. All the questions and answers are important. No one should say that any question or answer is not important 6. Answer "yes" or "no" to all questions unless you are told othenvise. A "yes" answer must be based on a preponderance of the evidence. Whenever a question requires an answer other than "yes" or "no," your answer must be based on a preponderance of the evidence. The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case, If you do not find tba:t a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence, For a fact to be proved by a preponderance of the evidence, you must find that the fact Is more likely true than not true. A fact may be established by direct evidence or by circumstantial evidence or both, A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial c evidence when it may be fairly and reasonably inferred from other facts proved, 2 7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have. 8. Do not answer questions by drawing straws or by any method of chance. 9. Do not trade your answers. For example, do not say, ''I will answer this question your way if you answer another question my way." 10. The answers to the questions must be based on the decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority. As I have said before, if you do not follow these instructions, it will be juror misconduct, and I might have to order a new trial and start this process over again. 'This would waste your time and the parties' money, and would requlre the taxpayers to pay for another trial. If a juror breaks any of these rules, tell thai person to stop, and if such juror fails to do so, report it to the Court. 3 .. , ........., DEFJNITIONS & INS'IRUCTIONS In answering the questions below; please follow these <;lefinitiom and instructions. 1. The t= ''Waller County" includes the Waller County Commissioners Court, Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman, Jeron Barnett, and John Amsler. 2. Waller County is a governmental body. 3. All questions for the Jury relate to the thne period on or before February 13, 2013. 4 .. , .. , DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1. 2, 3, AND 4 1. A governmenial body may consult with its attorney in executive session to discuss the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may not discuss non-legal matters. a. ''Non-legal matters" include but are not limited to: (1) merits of enacting an ordinance; (2) merits of a proposed contract; (3) financial considerations of a proposed contract; or (4) matters of public policy; or (5) merits of an application. b. Legal issues include advice given to Waller County regarding the legal rami:ficatioru of facts and information and the legality of a proposed contract or proposed ordinance. 2. ''Deliberation" means a verbal exchange during a meeting between a quorum of a govemmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business. 3, ((Meeting" means! a. A deliberation between a quorum of a govemmenial body or between a quorum of a govemmenial body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the govemmental body takes formal action, or b. A gathering: i. That is conducted by the governmental body; ii. At which a quorum of members of the governmental body is present; ill. That has been called by the govemmental body, and; iv, At which the members receive information from, give information to, ask questioru of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. 4. "Closed Meeting" mearu a meeting to which the public does not have access. 5. "Quorum" means a majority of a governmental body. 6. A "walking quorum" occurs when members of a governmental body gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly, and intentionally, discuss a public matter witb a quorum of that body at a place other than a posted meeting. 5 ..._,., ·;..__ QUESTION NUMBER 1 Do you find that the Waller County Commissioner's Court deliberated non-legal matters relating to Ordinance 2013-001 in a closed meeting? Answer: -.::;~;)''e-"---S_ _ ("Yes" or "No") 6 QUESTION NUMBER 2 Do you find that the Waller County Commissioner's Court deliberated non-legal matters relating to the Host Agreement in a closed meeting? Answer: g-e) ("Yes" or "No") 7 '"'I QUESTION NUMBER 3 Do you find that at least three (3) members of the Waller County Commissioners Court engBtled in a walking quorum related to the following items below? (a) Host Agreement (b) Ordinance 2013-901 8 ·-~ QUESTION NUMBER 4 "Negotiate" means to try to reach an agreement or compromise by discussion with others. Do you :find that one or more members of the Waller County C,ommissioners Court acted as a committee, authorized by at least three (3) members of the Commissioners Court, to negotiate the terms of the following items before presentation to the Waller County Commissioners Court for a vote? Answer "Yes" or ''No" for each of the following. (a) Host Agreement Answer: _____j-r=-eS""-___ ("Yes" or ''No'~ (b) Ordinance 2013-001 Answer: -F~~e,;;,L--- ("Yes" or ''No") 9 ,, ,,, 'l ··.·.···--·- ... 1 ... - ..... ,., . If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number¢5, ~ otherwise, do not answer Question Number 5. QUESTION NUMBERS Do you find that there were any committee meetings held that were not open to the public relating to the following? (a) Host Agreement Answer: -i~:'-1-'5'-..L--- ("Yes" or "No") (b) Ordinance 2013-001 Answer: --i~:!.·""f'...>-5--- ("Yes" or "No") 10 ' ........ . If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number 6, otherwise, do not answer Question Number 6 and proceed to Questien Number 7. INSTRUCTION FOR QUESTIONNOMIIER 6 A "rubber stB:rnp" occurs when a committee's recommendations are approved without meaningful discussion. QUESTION NUMBER 6 Do you find that the Commissioners' vote at the Feb!)lary 13, 2013 open meeting was a rubber stamp of the following items? Host Agreement Answer: ....,;~!lr'--P-"$'-----<"Yes" or "No") Ordinance 2013-001 Answer: ----:oL\~e:...;s,____ ("Yes" or ''No") d 11 INSTRUCTION FOR QUESTION NUMBERS 7 THROUGH 9 Public infonnation means information 1hat is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business. Public Information includes all documents, regardless of physical form or characteristics, created or received by Waller County in the transaction of public business. Public information includes, but is not limited to, e-mails, text messages, and other electronic recordings. Waller County is required to preserve and manage its Public Information in accordance with applicable rules and laws governing the destruction and other disposition of state and local government records or Public Information. Each Waller County Commissioner and the Waller County Judge is the officer for public information and the custodian of the information created or. received by that county commissioners' office. Waller County or the elected county officer for information of that elective county office may determine a time for which information 1hat is not currently in Use will be preserved, subject to any applicable rule or law governing the destruction and other disposition of state and local gove=ent records or public information. A£ an officer for public information, each Waller County Commissioner or County Judge is responsible for the release of public information. Each is required to: (1) make public informa;tion available for public inspection and copying; (2) carefully protect public information from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or rebind public information as necessary to maintain it properly. Each officer for public information is required to prom:in.ently display a sign containing basic information about the rights of a requestor, the responsibilities of a govemmental body, and the procedures for inspecting or obtaining a copy of public information. The officer shall display the sign at one or more places in tbe administrative offices of the gove=ental body where it is plainly visible to members of the public and employees of the governmental body whose duties include receiving or responding to requests under this chapter. A£ officers for public information, Waller County Commissioners and the Waller County Judge must promptly produce public information for inspection, duplication, or bath upon request by any person for public information: ''Promptly" means as soon as possible under the circumstances, that is, within a reasonable time, without delay. If an officer for public information cannot produce public inforin.ation for inspection or duplication within 10 business days after the date the information is requested, the officer must certify 1hat fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available . for inspection or duplication. 12 QUESTION NUMBER 7 Do you find that County Judge Glenn Beckeodorff failed to comply with any of the following? (a) Protecting public information from deterioration, alteration, mutilation, loss, or unlawful removal; (b) Displaying a sign containing basic information about the rights of a requestor, the responsibilities of a governmental bqdy, and the procedures for inspecting or obtaining a copy of public .information at one or more places in the administrative offices of the governmental body where it is plainly visible to members of the public and employees of the governmental body; (c) Promptly producing public information for inspection, duplication, or both upon request by any person for public information; (d) Certifying in writing to the requestor withln 10 business days after the date the information was requested, that public information requested could not be produced for inspection or duplication; (e) Notifying ihe requestor within 10 business days after the request of a date and hour withln a reasonable time when ihe information would be available for inspection or duplication to the requestor. Answer: 8~5 ("Yes" or "No") 13 QUESTION NUMBER 8 Do you find that Waller County Precinct Two Commissioner Frank Pokluda failed to comply with any of the following? (a) Protecting public information from deterioration, alteration, mutilation, loss, or unlawful removal; (b) Displaying a sigo containing basic information about the rights of a requestor, the responsibilities of a gove=ental body, and the pmc<;>dures . for inspecting or obtaining a copy of public information at one or more places in the administrative offices of the gove=ental body where it is plainly visiple to members of the public and employees of the gove=ental body; (c) Promptly producing public information for inspection, duplication, or both upon request by any person for public information; (d) Certifying in writing to the requestor within 10 business days after the date the information was requested, that public information requested could not be produced for inspection or duplication; (e) Notifying the requestor within 10 business days after the request of a date and hour within a reasonable time when the information would be available for inspection or duplication to the requestor. Answer: -~..::g."'..e:_,)_ _ _ ("Yes" or "No") 14 01JESTIONNUMBER 9 Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with any ofthe following? (a) Protecting public information from deterioration, alteration, mutilation, loss, or unlawful removal; (b) Displaying a sign containing basic information about the rights of a requestor, the responsibilities of a governmental body, and the procedures for inspecting or obtaining a copy of public information at one or more places in the administrative offices of the governmental body where it is plainly visible to members of the public and employees of the governmental body; (c) Promptly producing public information for inspection, duplication, or both upon request by any person for public information; (d) Certifying in writing to the requestor within 10 business days after the date the information was requeS"!ed, that public information requested could not be produced for inspection or duplication; (e) Notifying the requestor within 10 business days after the request of a date and hour within a reasonable time when the information would be available for inspection or duplication to the requestor. Answer: --:~3--"-e'"""s'---- ("Yes" or "No") 15 After you retire to the jury room, you will select your ownpresidiDgjuror. The first thing the presiding juror will do is to have this complete charge read aloud and then you will deliberate upon your answers to the questions asked. It is the duty of the presidiDg juror- 1. to preside during your deliberations, 2. to see that your deliberations are conducted in an orderly manner and ln accordance with the instructions in this charge, 3, to write out and hand to the bailiff any communications concerning the case that you desire to have delivered to the judge, 4. to vote on the questions, 5. to write your answers to the questions in the spaces provided, and 6. to certify to your verdict in the space provided for the presiding juror's signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is less than unaniroous. You should not discuss the case with anyone, not even with other members of the jury, unless all of you are present and assembled in the jury room. Should anyone attempt to talk to you about the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please inform the judge of this fact. If you have a question, you must submit such question in writing to the Court. The Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will present it to the Couri:. Do not discuss _the question with the Bailiff. When you have answered all the questions you are required to answer under the instructions of the judge and your presidiDg juror has placed your answ'ers in the spaces provided and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the door of the jury room that you have reached a verdict, and then you will retum into co with your verdict 16 ··-· ~-~ · ........,,_........ -~-~-, .. ___ ....... '" .... ,...-.. ~"'• Certificate We, the jury, have answered the above and foregoing questions as herein indicated, and herewith retum same into court as our verdict. 10 (To be signed by the presiding juror if th~j)Jl'y'"ls 1l1lllnlmous.) Verd ..y tJf r PRESIDJNG JUROR Printed Name ofPresiding Jur~ ·'2-- 1/l(Jic.,..'f- l~ u (To be signed by those rendering fue verdict if the)mY is not unanimous.) Jurors' Printed Names Ckas-< es b. s~~ f.! JJ. -e(.;"z., J/llct-f fl:£ \ fA . /.. {HJ /'101'/ ~<~ Beq>J Sc.o-rt' M r kP.c-""7, ~ '("7; Ko&ert L, [JJ?.'!'ic. k. 3 l4l ·~ L;,}c•S 17 CAUSE NO. 13-03-21872 ClTY OF HEMPSTEAD, Texas, § 1N THE DISTRICT COURT OF Plaintiff § § And § § CmzENS AGAINST THE LANDFILL IN § HEMPSTEAD, § Plaintiff Intervenor § § v. § WALLER COUNTY, TEXAS § WALLER COUNTY, TEXAS, COUNTY § JUDGE BLENN BECKENDORFF, § COMMISSIONER FRANK POKLUDA, § COMMISSIONER STAN KITZMAN, § COMMISSIONER JERON BARNET, § COMMISSIONER JOHN AMSLER, and § 506tb JUDICIAL DISTRICT PJNTA!L LANDFILL, L.L.C. § Defendants. § AGREED STII'ULATIONS OF FACT COMES NOW Plainti:ff City of Hempstead, Plaintiff Intervenor Citizens Against the Landfill in Hempstead, and Defendants Waller County, Texas, County Judge Glenn Beckendorff, Commissioner Frank Pokluda, Commissioner Stan J(jtzman, Commissioner Jeron Barnett, Commissioner John Amsler, and Pintail Landfil~ LLC and presents these Agreed Stipulations of Fact to the Court. The Parties agTee that the existence of such stipulations shall not be published to the Jury or mentioned In argument before the jury. I. Agreed StipulatioiJIS of Fact Regarding Collltraet Exception to Open Meetings Act, Texas Government Code§ 551.0725. Waller County Commissioners Court did not invoke Texas Government Code § 551.0725 (relating to Deliberation Regarding Contract Being Negotiated) to entet executive session or closed meeting on February 13, 2013, January 2, 2013, or December /}_A~~~~ j;J,/7,/!f ~ 5''13 AGREED STJPLJLATIONS OF FACT 1/h ·I I . ;, Page 1 of3 r> (Etz ,e.'f /i&/J/11 /("'// tf!F!!~~~~~ ._Jt{d7f' iJ/c<'fi;~l'fj EXHIBIT I c2 19, 2012. The Waller County agenda notices and minutes for these meetings do not claim Texas Government Code§ 551.0725 as authority for entering executive session. Further, Waller County Commlssioners Court did not meet any of the requirements to deliberate business or financial Issues relating to a contract being negotiated, whlch are enumerated in Texas Government Code § 551.0725. Specifically, (1) the Waller County Commissioners Court did not vote lll!animously that deliberation would have a detrimental effect on the position of the Commissioners Court in negotiating with a third person before conducting the closed meeting; (2) the attorney advising the Waller County Commissioners Court did not issue a written determination that deliberation in an open meeting would have a detrimental effect on the position of the Commissioners Court in negotiating with a third person before conducting the closed meeting; and (3) the Waller County Commissioners Court did not make a tape recording of the closed meeting. ll. Agreed Stipulation of Fact Regarding ExtraterritGrial Jurisdiction of City of Hempstead. The Ordinance 2013-001 authorizes and allows disposal of solid waste within certain areas of the City of Hempstead's extraterritorial jurisdiction ("ETJ"). Those certain areas consist of the areas described in Exhibit A of Ordinance 2013-001 that are within one mile offue city limits of the City of Hempstead. ill. Agreed Stipulation of Fact that the Host Agreement ill a Contract. The Host Agreement is a contract. AGREED STIPULATIONS OF FACT Page 2 of3 Agreed: Kelly Dempsey J. Eric Magee Kdempsey@olsonJlp.com e.magee@allison-bass.com Corey R. Ouslander Allison, Bass & Associates, LLP cous1ander@olsonJlp.com 402 W. 12lh St OLSON & OLSON, L.L.P. Austin, Texas 78701 Wortham Tower, Ste. 600 Phone: (512)482-0701 2727 Allen Parkway Facsimile: (512)480-0902 Houston, Texas 77019 ATTORNEYS FORWALLER COUNTY Phone: (713) 533-3800 DEFENDANTS Facsimile: (713)533-3888 AtTORNEYS OR CITY OF HEMPSTEAll By:_-"'-of~.c;q,L'ti~~u::___:~_::---_::~ V. Blayre Peiia Brent Ryan bpena@hslawmail.com bzyan@msm1X.com Wesley P. McGuffey McElroy, Sullivan, Miller, wmcguffey@hslawmail.com Weber & Ohnstead, L.L.P. Hance Scarborough, LLP P.O. Box 12127 400 W. 15th Street, Ste. 950 Austin, Texas 78711 Aus1in, Texas 78701 Phone: (512) 327-8111 Phone: 512-479-8888 Facsimile: (512)327-6566 Facsimile: 512-482-6891 fax ATIORNEYSFORPINTAILLANDFILL,LLC Carol Chaney Carol.chaney@thechaneyfirrn.net Law Office of Carol A. Chaney 820 13th Street P.O. Box.966 Hempstead, TX 77445 Phone: (979) 826-6660 Facsimile: (979) 826-8989 AtTORNEYS FOR INTERVENORS/CrrrZENS AGAINST LANDFILL AGREED S'ITPULATlONS OFFACT Page 3 of3 CLERK'S NOTICE OF APPEAL TRIAL COURT# 13-03-21872 COURT OF APPEALS# 14-15-00322-CV IN THE 506m DISTRICT COURT WALLER COUNTY, TX ASSIGNED TO FOURTEENTH COURT OF APPEALS CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT AND CITIZENS AGAINST THE § LANDFILL IN HEMPSTEAD § WALLER COUNTY vs. § WALLER COUNTY, TEXAS ETAL § 506TH JUDICIAL DISTRICT Note: Original Notice of Appeal was sent on 416/15 for Appellant Glenn Beckendorff In his Ojjlclal Capacity as Waller County Judge and the following Appellants are being added: Appellants Frank Pokluda, in his Official Capacity as Waller County Precinct Two Commissioner Stan Kitzman, in his Official Capacity As Waller County Precinct Four Commissioner Appellants' Attorney David A. Carp, State Bar No. 03836500 427 Mason Park Boulevard Katy, TX 77450 Phone: 713-781-7500 Fax: 713-781-4797 Court 506ili Judicial District Judge Hon. Terry Flenniken Appellee City of Hempstead, Texas Appellee's Attorneys Arthur L. Pertile, 1ll Kelly Dempsey Corey R. Ouslander Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Appellee Citizens Against the Landfill in Hempstead Appellee's Attorneys Teny L. Scarborough Michael L. Woodward V. Blayre Perra 400 w 15'' #950 Austin, Texas 78701 Carol A. Chaney 820 13 1' Street PO Box 966 Hempstead, Texas, 77445 Court Reporter Robyn Wiley 979-921-0921 reporter@court506.com MarshaL. Burrus 936-372-5182 shaburrus@sbcglobal.net Maggie Raiford 979-716-7122 maggie raiford@yahoo.com Kaetheryne Kyriell 936-443-3312 kkyriell@gmail.com Judgment February 20,2015 Notice Appeal Aprill5, 2015 Assigned 14th Court of Appeals Liz Pirkle LIZ PI.IV<:r,.p, DISTRICT LERK OF WALLER COUNTY J2__ cc; Hon. Albert M. McCaig David A. Carp, dcaro@hcmlegal.com James P. Allison, Lallison@allison-bass.com J. Eric Magee, e.magee@allison~bass.com Corey R. Ouslander, couslander@olsonllp.com V. Blayre Pena, bpena@hslawmail.com Carol A. Chaney, carol.chaney@thechaneyfirm.net Brent W. Ryan, bryan@msmtx.com Robyn Wiley, reporter@court506.com MarshaL. Burrus, shaburrus@sbcglobal.net Maggie Raiford, maggie raiford@yahoo.com Kaetheryne Kyriell, kkyriell@gmail.com Elton R. Mathis, e.mathis@wallercounty.us Ruhee G. Leonard, r.leonard@wallercounty.us Flied: 411512015 4:15:34 PM Liz Plrk:le, District Clerk Waller County, Texas By: Janie Derrick, Deputy CAUSE NO. 13-03-2187.2 CITY OF HEMPSTEAD, TEXAS § IN THE DISTRICT COURT OF § Plaintiff, § and § § CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS IN HEMPSTEAD § v. § WALLER COUNTY, TEXAS, et al., § § Defendants. § 506'" JUDICIAL DISTRICT NOTICE OF APPEAL Frank Pokluda, in his official capacity as Waller County Precinct Two Commissioner, and Stan Kitzman, in his official capacity as Waller County Precinct Four Commissioner (Appellants), desire to appeal and hereby file this notice with the Court of Civil Appeals for the First or Fourteenth Judicial District of Texas, sitting at Houston, Texas from the Agreed Final Judgment signed in the above Cause on February 20,2015, and Appellants desire to appeal from each and every part of said Agreed Final Judgment. Pursuant to TRAP 26.1 (d) Appellants desire to join in the related Notice of Appeal filed on April2, 2015 by Glenn Beckendorff, in his Official Capacity as Waller County Judge, and are hereby filing this their Notice of Appeal within fourteen (14) days of Mr. Beckendorff's appeal. Mr. Beckendorff's appeal is assigned to the Fourteenth Court of Appeals under Court of Appeals #14-15-00322-CV, and styled 1 Glenn Beckendorff, in his Official Capacity as Waller County Judge, v. City of Hempstead, Texas and Citizens Against the Landfill in Hempstead. Dated: April15, 2015 Respectfully submitted, By: /s/ David A. Carp David A. Carp TBN: 03836500 Herzog & Carp 427 Mason Park Boulevard Katy, Texas 77450 713.781.7500 Phone 713.781.4797 Fax dcarp@hcmlegal.com Attorneys for Appellant 2 CERTIFICATE OF SERVICE I hereby certify that on April15, 2015 a true and correct copy of the foregoing Notice of Appeal of Frank Pokluda, in his Official Capacity as Waller County Precinct Two Commissioner, and Stan Kitzman, in his Official Capacity as Waller County Precinct Four Commissioner, was delivered viae-service to the following: James P. Allison Brent W. Ryan, Esq. J. Eric Magee McElroy, Sullivan & Miller, LLP Allison, Bass & Magee, LLP P.O. Box 12127 A. 0. Watson House Austin, TX 78711 402 W. 12th Street Austin, Texas 78701 Attorneys for Pintail Landfill, LLC Attorneys for Waller County, Texas and Waller County Commissioners Court Eric Farrar, Esq. Olson & Olson, LLP Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Attorneys for City of Hempstead Terry L. Scarborough Michael L. Woodward V. Blayre Pena Hance Scarborough, LLP 400 w 15th #950 Austin, Texas 78701 Carol A. Chaney Law Office of Carol A. Chaney 820 13th Street P.O. Box 966 Hempstead, Texas 77445 Attorneys for Citizens Against the Landfill in Hempstead /s/ David A. Carp David A. Carp 3 Envelope Details Page 1 of2 Print this page Case# 13-03-21872- CITY OF HEMPSTEAD, TEXASv.WALLER COUNTY, TEXAS, COUNTY JUDGE GLENN BECKENDORFF, COMMISSIONER FRANK POKLUDA, COMMISSIONER STAN KITZMAN, COMMISSIONER JERON BARNETT, COMMISSIONER JOHN AMSLER, and PINTAIL LANDFILL, L.L.C. (Flenniken, Terry) Case Information Location Waller County • 506th District Court Date Filed 04/15/2015 04:15:34 PM Case Number 13-03-21872 CITY OF HEMPSTEAD, TEXASv.WALLER COUNTY, TEXAS, COUNTY JUDGE GLENN BECKENDORFF, COMMISSIONER Case Description FRANK POKLUDA, COMMISSIONER STAN KITZMAN, COMMISSIONER JERON BARNETT, COMMISSIONER JOHN AMSLER, and PINTAIL LANDFILL, L.L.C. Assigned to Judge Flenniken, Terry Attorney David Carp Firm Name Herzog & Carp Filed By David Carp Filer Type Not Applicable Fees Convenience Fee $0.09 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $3.00 Total Provider Tax Fees $0.25 Grand Total $3.34 Payment Account Name Herzog & Carp Transaction Amount $3.34 Transaction Response Approved Transaction ID 8065630 Order# 004905173-0 https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid~9e4ed32c-b5e7-4cff-8f3d-a6e524f3e71d 4/16/2015 Envelope Details Page 2 of2 Notice of Appeal Filing Type EF ileAndServe Filing Code Notice of Appeal Filing Description Notice of Appeal Reference Number Beckendorff Appeal Messrs. Pokluda and Kitzman are joining in the Comments Notice of Appeal filed by Glenn Beckendorff on April 2, 2015. Status Accepted Accepted Date 2015-04-16 13:05:39 UTC Fees Court Fee $0.00 Service Fee $0.00 Documents Lead Document Notice of Appeal Pokluda-Kitzman.pdf [Original] [Transmitted] eService Details S d Date/Time Name/Email Firm Service Type Status erve Opened McElroy, Brent WRyan Sullivan, Miller, EServe Sent Yes Not Opened bryan@msmtx.com Weber& Olmstead, LLP Corey Ouslander Olson & Olson, EServe Sent Yes Not Opened couslander@olsonolson.com LLP Kelly Dempsey Olson & Olson, Sent Yes Not Opened EServe kdempsey@olsonllp.com LLP Ann Jacobs 04/16/2015 Herzog & Carp EServe Sent Yes ajacobs@hcmlegal.com 08:04:36AM Arthur L Fertile III Allison Bass & 04/15/2015 EServe Sent Yes apertile@olsonllp.com Associates LLP 04:47:51 PM V Blayre Pena Allison Bass & EServe Sent Yes Not Opened bpena@hslawmail.com Associates LLP Carol A Chaney Allison Bass & 04/15/2015 EServe Sent Yes carol.chaney@thechaneyfirm.net Associates LLP 06:31:28 PM James Allison Olson & Olson, EServe Sent Yes Not Opened j.allison@allison-bass.com LLP Eric Magee Olson & Olson, EServe Sent Yes Not Opened e.magee@allison-bass.com LLP https://efile.txcourts.gov!EnvelopeDetails.aspx?envelopeguid=9e4ed32c-b5e7 -4cff-8!3d-a6e524!3e71 d 4/16/2015 Cause No. 13-03-21872 CITY OF HEMPSTEAD, TEXAS § Plaintiff, § § and § § CITIZENS AGAINST THE LANDFILL § WALLER COUNTY, TEXAS IN HEMPSTEAD § § v. § § WALLER COUNTY, TEXAS, ET. AL. § Defendants. § 506™ JUDICIAL DISTRICT AGREED FINAL JUDGMENT Before the Court is the above-styled and numbered cause of action. On December 1, 2014, the case was called for trial. Plaintiff City of Hempstead ("Hempstead") appeared through its attorney of record and announced ready for trial. Plaintiff-Intervenor Citizens Against the Landfill in Hempstead ("CALH") appeared through its attorney of record and announced ready for trial. Defendants, Walter County, Texas including the elected officials of the Waller County Commissioners Court, in their official capacities (collectively "Waller County"), appeared in person and by their attorney of record and announced not ready for trial. Defendant, Pintail Landfill, LLC, ("Pintail") appeared in person and by its attorney of record and announced not ready for trial. After denying the Motions to Abate and Requests for Continuance, a jury, consisting of 12 qualified jurors having been previously demanded, was duly empanelled and the case proceeded to trial . • Agreed Final Judgment Page 1 VOl 2 0 0PG 0 I 38 The Court, after examining the record and the evidence and argument of counsel, finds that venue is proper in Waller County, that the Court has jurisdiction over the subject matter and the parties in this case, and that the Court has jurisdiction to enter a judgment in this case. At the conclusion of the evidence, the Court submitted the questions of fact in the case to the jury. The charge of the Court and the verdict of the jury are incorporated for all purposes by reference, and attached hereto as Exhibit 1. The Parties also entered into certain Stipulations of Fact, which are incorporated for all purposed by reference, and attached hereto as Exhibit 2. Following the verdict of the jury of December 18, 2014, Hempstead, CALH, Pintail Landfill and Waller County filed a Joint Motion for Entry of Agreed Final Judgment. In said Motion, the parties represent that they have reached a settlement agreement concerning the jury verdict and the remaining legal and factual issues pending before the Court and have agreed to the entry of final judgment. Accordingly, the Court renders the following Agreed Final Judgment: IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Waller County Ordinance No. 2013-001 is void. IT IS FURTHER ORDERED that the Host Agreement between Waller County, Texas, and Pintail Landfill, LLC is void. IT IS FURTHER ORDERED that Plaintiff City of Hempstead have and recover from Waller County attorneys' fees in the amount of Two Hundred Forty-Five Thousand Dollars and no cents ($245,000). IT IS FURTHER ORDERED that Plaintiff-Intervenor Citizens Against the Landfill in Hempstead have and recover from Waller County attorneys' fees in the amount of Three Hundred Twenty-Five Thousand Dollars and no cents ($325,000). r~i' }.';/};ru·)j~~/ Agreed Final Judgment Page 2 \'OL 2 0 0 PG () I 3 9 jj -tJ-3 -c?/872- IT IS FURTHER ORDERED that the total amount of the judgment rendered will bear interest at a rate of Five Percent (5%) per annum from the date of this judgment until paid in full. Pursuant to the terms of the parties' settlement agreement giving rise to this Agreed Final Judgment, the parties do not present to this Court for adjudication, and this Court does not adjudicate, any issue concerning any claim, defense, or assertion, whether one or more, that has been or may in the futore be raised in any forum, regarding the validity of Waller County Ordinance No. 2011-001 and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration No. 40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre facility site described in such Registration and Permit Application. All costs of court spent or incurred in this cause are to be borne by the party incurring same. All writs and processes for the enforcement and collection of this judgment may issue as necessary. All other relief requested in the live pleadings of any party that is not specifically granted is DENIED. This is a final judgment that disposes of all claims and parties. SIGNED this~ day of U--,""2015. Agreed Final Judgment Page 3 VOL 2 00 PG 0 I 40 AGREED AS TO FORM AND SUBSTANCE: Art Pertile Corey R. Ouslander James P. Allison couslander@olsonllp.com J. Eric Magee OLSON & OLSON, L.L.P. e.magee@allison-bass.com Wortham Tower, Ste. 600 Allison, Bass & Associates, LLP 2727 Allen Parkway 402 W. 12th St. Houston, Texas 77019 Austin, Texas 78701 Phone: (713) 533-3800 Phone: (512) 482-0701 Facsimile: (713)533-3888 Facsimile: (512)480-0902 AITORNEY OR CITY OF HEMPSTEAD ATTORNEYS FOR WALLER COUNTY DEFENDANTS By:J.~M~~ V. Blayre Peiia Brent Ryan 0 bpena@hslawmail.com bryan@msmtx.com Hance Scaroorough McElroy, Sullivan, Miller, 400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P. Austin, Texas 78701 P.O. Box 12127 Phone:512-479-8888 Austin, Texas 78711 Fascimile: 512-482-6891 fax Phone: (512) 327-8111 Facsimile: (512)327-6566 Carol Chaney ATTORNEYS FOR PINTAIL LANDFILL, LLC Cilrol.chaney@thechaneyfirm.net Law Office of Carol A. Chaney 820 13th Street P.O.Box966 Hempstead, TX 77445 Phone: (979) 826-6660 Fascimile: (979) 826-8989 A 1TORNEYS FoR INTERVENORS/CITIZENS AGAINST LANDFILL Agreed Final Judgment Page4 VOL 20 0PG 0 I Lf I CAUSE NO. 13-03-21872 CITY OF HEMPSTEAD, Texas, § lN THE DISTRICT COURT OF • Plaintiff § § And § § CITIZENS AGAJNST THE LANDFILL IN § HEMPSTEAD, § Plaintiff Intervenor § § v. § WALLER COUNTY, TEXAS § WALLER COUNTY, TEXAS, COUNTY § JUDGBBLENN BBCKENDORFF, § COMMISSIONERFRANKPOKLUDA, § COMMISSIONERSTANKITZMAN, § COMMISSIONER JER.ON B.AlU{BT, § COMMISSIONER JOHN AMSLER, and § 506"' RJDICIAL DISTRICT PINTAIL LANDFILL, L.L.C. § Defendants. § (';RARGE OF THE CQURT MEMBERS OF THE JURY: After closing arguments, you will go to the jury room to decide the case, IIIISWei the questions that are attached, and reach a verdict You may discuss the case with other jurors only when you are all together in the jury room. This case Is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the solo judges of the credibility of the willlcsscs and the weight to be given their testlmocy, but in llllllters of law, you must be governed by the iDs\nJctions in this charge. In dlscbarging your respons!bllity on this jury, you will observe all the instructions which have pmr!ously been given you. I sh8ll now give you additlooal instructions wbieh you should carefully and strictly follow during your deliberations. ReiMillber my previons Instructions: Do not discll8S the case with anyone else, either in person or by any other means. Do not do any lndepondent investigation about the case or conduct any resoarch. Do not look up any words in dictionaries or on the Internet. Do not post infor:tf¥1tlon about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason, without pmmission from the Court. When you enter the jury room to deliberate, you must surrender your phone and any other electronic device. VOL 2Q0i'G 0 l l} 2 I I .........., A:n:y notes you have taken are for your own personal use. Yau may take your notes back into the jury room and comult them during deliberatiODS, but do nat show or read your notes to your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on your independent recollection of the evidence and not be influenced by the fact that another juror bas or bas not taken notes. You must leave your notes with the bailiff when you are nat deliberating. I will make sure your notes are kept in a safe, secure location and nat disclosed to anyone. After you complete your dellberatiODB, the bailiff will collect your notes, unless you cboose to keep them. When you are released from jury duty, the bailiff will promptly destroy yam note~, unless you have retained them, so that no one oan read what you wrote. Here are the instructions for answering the questions. 1. Do not let bias, prejudice or sympathy play any part in yom decision. 2. .Base your answers only on the evidence admitted in coW't and on the Jaw that is in these instructions ao.d questions. Do not consider or discuss any evidence that was not admitted in the comtroom.. 3. You are to make up yom own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all of my instructiODS. 4. If my instruc1ions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal defini1ion. S. All the questions and answers are lm.portant. No one should say that any ques1ion or aoswer is not important. 6. Answer "yes" or ''no" to all ques1iODS unleas you are told otherwise. A "yet' answer must be based on a preponderance of the evideoce. Whenever a question iequlres an answer other than "yes" or "no," your auswer must be based on a preponderance of the evidence. The term ''preponderance of the evidence" means the greater weight of credible evideoce presented in this case. If you do oot find that a preponderance of the evidence supports a "yes" answer, thea aoswer "no." A preponderance of the evidence is not measured by the nurober of witnesses or by the number of docuroents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than nat true. A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact ls established by circumstantial evidence wheo it may be fairly and reasonably inferred from other facts }iroved VOL 2 0 0 PG 0 l 43 7. Do not decide who you 1hink should wln before you answer the queslions and then just answer the questions to match yo\11' decision. .Answer each question oarefully without considering who will win Do not discuss or consider the effect your answers will have. 8. Do not answer questions by drawing straws or by any method of chance. 9. Do not trade your answers. For example, do not say, "I will answer thls queslion your way if you answer another queslion my way." 10. The answers to the questions must be based on the decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a maJority. All I have said before, if you do not follow these instructions, it will be juror misconduct, and I migiit have to order a new trlal and start this process over again. This would waste your time and the parties' money, and would require the taxpayers to pay for another trial, If a juror breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the Court. ··••"·"n··· """"i"\ ·••••• . . . . . . . , ....... DEFINlTIONS & INSTRUcriONS In answering the questlODS below, please follow these llefinitions and Instructions. 1. The term "Waller County" includes the Waller County Commissioners Court, Judge Olenn Bt'Ckendorlf and Waller Co1lllty Commissioners Frank Pokluda, Stan Kitzman, Jeron Bamett, and John Amsler. 2. Waller County is a governmental body. 3. All questions for the Juzy relate to the time period on 01 before February 13,2013. 4 VOL 200?G Qj l-1 5 ...._.,., ............... , DEFINITIONS AND INSTRUcriONS FOR QUESTION NUMBERS 1. 2. 3, AND 4 1. A governmental body may consult with its attomey in executive session to discuss the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may not dlsouss non-legal matters. a. ''Non-legal matters" include but are not limited to: (1) merits of enacting an ordinance; (2) merits of a proposed contract; (3) financial considerations of a pcoposed contract; or (4) matters of public policy; or (5) merits of an application. b. Legal issues include advice given to Waller County regarding the legal ramifications of facts and infOIIJllltion and the legality of a pcoposed contract or pcoposed orcfulance. 2. "Deliberation" means a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, conceming en issue within the jurisdiction of the governmental body or any public business. 3. "Meeting" means: a. A deliberation between a quorum of a governmental body or between a quorum of a governmental body and another person, during which public business or public policy over which the govemmental body has supervision or oonlrol is discussed or considered or during which the govemmental body takes formal action, or b. A gathering: i That is conducted by the governmental body; li. At which a quorum of members of the governmental body is pteseut; iii. That has been called by the governmental body, and; iv. At which the mOlllbers receive lnfo.mllllion from, give lllfoiilllltion to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. 4. "Closed Meeting'' means a meeting to which the public does not have access. 5. "QuOrum" means a ma)ority of a governmental body. 6, A "walking quorum" occurs when members of a govemmental body gather in numbers that do not physically oonst1tu1e a quorum at sny one time but who, through successive gatherings, seoretly, and intentionally, discuss a public matter with a quorum of that body at a place other than a posted meeting. '":;' ·=-·~· . . -.. ·~··~\( -~~_, ~HI....l\ l,,~o...'l'lf i ... I CiV:L ;"'iJi·~J-;·::-c: ........ 5 QUESTION NUMJlER 1 Do you find that the Waller County CoiDIDissioDer's Court delibemted non-legal matters relating to Ordinance 2013-001 in a closed meeting? ("Yes" or ''No'~ ' ! VOL 2 0.0 ?G 0 llf 7 .. .. ~··:• .........., OUESTIQNNUMBEB.2 Do you find tllat the Waller County Commissioner's Court deliberated non-legal matters relat!Dg to the Host Agreement in a closed meeting? Answer: ~ -€) ("Yes" or "No") ViiL 200?G 0 j I~ 8 ................ , ............ , ......... . OUESTIONNUMBER3 Do you find that at least 1hree (3) members of the Waller County Commissioners Court en~ in a walking quoiUID. related to the following items below? (a) HostAgreement (b) Ordinance 2013-901 ' W/:..._l~E1i CCU~1T't 8 CiViL K:Kl.iTC:S ..... , ' ' . '' '~) "' ••••••• '' ' , ,........ •- . •· I ""'\ OlJESTION NUMBER 4 "Negotiate" means to try to reach an agreement or compromise by discussion with others. Do yon find tbat one or more members of the Waller County C.ommlssiouers Court acted as a committee, authorized by at .least three (3) members of the COIIIJilissioners Court, to negotiate the teims of the following items before presentation to the Waller County Commissioners Court for a vote? Answer ''Yes" or "No" for each of the following. (a) Host Agreement Answer: -.-ZJ-+e,_SL-__ C'Yes" or "No") (b) Ordinance 2013..001 Answer. ...,~,.q.::e"";;,____ (''Yes" or "No'~ 9 VOL 2 0 0PG Qj 5Q ....... , ,,, ''''l ··.····•···•·• ................. ''1 '""I . ~ If you answered ''yes" to Question Number 4(a) or 4(b), 2llSWer Question Number# 5, otherwise, do not answer Question Number 5. QUESTION NUMBER 5 Do you find that there were aey committee meetings held that were not open to the public relating to the following? (a) Host Agreement Answer:-4~~f5..L-_ _ ("Yes"or"No") (b) Ordinance 2013-001 Answer: --,;g~e..ls ___ C'Yes" or "No") I 10 VOL 20 0?u 0 j 5I ','',',''· .: .. w, ..... , .................................. .,, I If you answered "yelf' to Question Number 4(a) or 4(b), answer Question Number 6, otherwise, do not answer Question Number 6 and proceed to Question Number 7. JNSTRUCI'IONFOR QUESTION NUMBER. 6 A "robber stamp" occurs when a committee's reCOIIllllelldations are approved without meaningful discussion. QUESTION NUMBER 6 Do you find that tha Commissioners' vote a1 tha Febnlary 13, 2013 open meeting was a rubber stamp of the following items? (~) Host Agreement Answer: ...,B,loo\-tf;.;$).__ _ ("Yes" or "No") (b) Ordinance 2013-001 Answer: _,c;=re"-s'---- (''Yes" or "No") VOL 200PG 0 I 5 2 • ~······· • • • ,•, ' " · .. ' ' - .. ' . •J • . , ,......... , ·~,,.,.,., •• ' • • ,'','·''·"· INSTRUCTION FOROUFSI'IONNVMBERS 7 THROUGH 9 Public wormation means infoxmation that Is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business. Public Information includes all documenta, regardless of physical form or chatacteristics, created or received by Waller County in the transaction of public business. Public information includes, but is not limited to, e-mails, text messages, and other electronic recordings. Waller County Is required to preserve and manage its Public Information in accordance with applicable rules and laws govemlng the destruction aD.d other disposition of state aD.d local government records or Public Information. Each Waller County Commissioner and the Waller County Judge is the officer for public information aD.d the custodian of the infoiiiUltion created or·. received by that county commissioners' office. Waller County or the elected county officer for information of that elective county office may determine a time for which information that is not currently in Use will be preserved, subject to aD.Y applicable rule or law governing the destruction and other disposition of state and local government records or public information. AJl an officer for public information, each Waller Coonty Commissioner or County Judge is respollSible for the release of public information. Each Is required to: (1) make public information available for public inspection and copying; (2) carefully protect public information frolll deterioration, alteration, mutiUrtion, loss, or unlawful removal; aD.d (3) repair, renovate, or rebind public information as necessary to maintain It properly. Each officer for public information Is required to prominently display a sign containing basic infacmation about the rights of a requestor, the responsibiliti.es ofa govemnten!al body, and the procedurea for inspecting or obtaining a copy of public information. The officer shall display the sign at one or more places in the edmlnistrative offices of the governmental body where it is plainly visible to members of the public and employees of the governmen!al body whose duties Include receiving or responding to requests under this chapter. AJl officers for public information, Waller County Commissioners and the Waller County Judge must promptly produce public information for inspection, duplication, or both upon request by any person for public information: "Promptly" means as soon as poasible under tbe circumstances, that Is, within a reasonable time, without delay. If an officer for public information CaD.not produce public inforination for inspection or duplication within 10 business days after the date the information is requested, the officer must certify that fact in writing to the requestor and set a date and hcur within a reasonable time when the information will be available. for inspection or duplication. 12 VDL 20 0?3 0 l 5 3 .......... , ..............., .... _ .. QUESTION NUMBER 7 Do you iind that Collllty Judge Glenn Beckendorff failed to comply with any of the following? (a) Protecting public information from deterioration, elteJ:ation, mutilation, loss, or unlawful removal; (b) Displaying a sign containing basic iDfol'lll.ation about the rights of a requestor, the responsibilities of a goVIllllmental bo.dy, and the procedures for inspecting or ob)ainlng a copy of public information at one or more places in the admiJJistrative offices of the goVIllllmental body where it is plainly visible to members of the public and employees of the governmental body; (c) Promptly producing public Information for inspection, duplication, or both upon request by any person for public information; (d) Certifying in writing to the requestor within 10 business days after the date the information was requested, that public information requested could not be produced for inspection or duplication; (e) Notifying the requestor within 10 business days after the req)ltBt of a date end hour within a reasonable time when the information would be available for inspection or duplication to the requestor. C'Yes" or "No'~ VOL 2 0 0?G 0 l 5 l~ ' ' ........,........... ...... ,."'''' ........_.... ., ... ' 01JESTIQNNUM8ER8 Do you find that Waller County Precinct Two Commissioner Fnmk Pokluda failed to comply with any of the following? (a) Protecting public infonnation from deterioration, alteration, mutilation, loss, or unlawful removal; · (b) DlsplayiDg a sign containing basic information about the rights of a requestor, the responsibilities of a governmental body, and the proo¢ures . for inspectiDg or obtllining a copy of public lnform.ation at one or more places in the administrative offices of the governmental body 'Where it is plainly visi.l>le to members of the public and employees of the governmental body; (c) PrompUy producing public information for inspection, duplication, or both upon request by any person for public lnfotmation; (d) Certifying in writing to the requestor within 10 business days after the date the infoiiillltion was requested, that publi~ infonnation requested could not be produced for inBpection or duplication; (e) Notifying the requestor within 10 business days after the request of a date and hour within a reasonable time Viben the information would be available for inspection or duplication to the requestor. Answer: ~.e:> ~'Yes" or ''No") VOL 200P~ 0 I 55 ' ''''" ,, ,,.,.~·-"'"•' . ,, ......,,,, ·• OUE8TIQNNJIMBER 9 Do you find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with any ofthe following? (a) Protecting public lnfoiiD.ation from deterlotati.Oil, alteration, mutilaticm, loss, or unlawful removal; (b) Displaying a sign containing basic Information about the rights of a requestor, the responsibilities of a govemtllCll1al body, and the procedures for inspecting or obtainlng a copy of public infoiiD.ation at one or more places in the administrative offices of tbe govemmental body Vihetc it Is plainly visible to members of the public and employees of the governmental body; (c) Promptly producing public lnfoiiD.ation for inspection, duplication, or both upon request by any person for public Information; (d) Certifying in writing to the requestor within 10 business days after the date the Information was requested, that public Information requested could not be produced for inspection or duplication; (e) Notifying the requestor within 10 businesa days after the request of a dete and hour within a reasonable time when the Information would be available for imlpection or duplication to the requestor. ("Yes" or ''No") 15 "'""" ·~ ' i I After you retire to the jury room. you will select your own presiding juror. The first thing the presiding juror will do is to have this complete charge read aloud and then you will deliberate upon your answers to the questions asked. It Is the duty of the presiding juror- 1. to preside during your deliberations, 2. to see that your deliberations are conducted in an orderly manner and in accordance with the instnlctions in this charge, 3. to write out and halld to the bai1lff any commllllications conceming the case that you desire to have delivered to the judge, 4. to vote on the questions, 5. to write your answers to the questions in the spaces provided, and 6. to certify to your verdict in the apace provided for the presiding juror's signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is less than u:nanimous. You shoUld not discuss the case with anyone, not even with other members of the jury, unless all of you sre present and assembled in the jury room. ShoUld anyone attempt to talk to you about the case before the verdict is retumed, whether at the courthouse, at your home, or elsewhere, please inform the judge of this fact. If you have a question, you must submit such question in writing to the Court. The Presiding Juror must write out the question, sign same and hand the note to the Bailiff, who will present it to the Couri. Do not discuss .the question with the Bailiff. When you have answered all the questions you are required to answer under the lnsttuctions of the judge and your presiding juror has placed your 8llBWml in the spaces provided and signed the verdict as presiding juror or obtained the signatures, you will infann the bailiff at the door of the jury room that you have resched a verdict, and then you will return into co with your verdict 16 VDL 200P~ 0 I 5 7 ··-· ______ ._,_, .. ..... ,.,.,_,_, ...... ....... ,.,,.... ~, , ~·-·"· .....-· . ,., .... . . -,,,,.,,.,.......... " " ... ,, .., ':':"',\-· ""i i Certificate . . We, the jury, have answered the above and foregoing questions as herein Indicated, and herewith retum same Into court as our verdict. c..--t' (To be aigncd by the presiding juror ifthe~JS 1tnaplrnnus.) vlftl' (;1 r PRESIDING JUROR Printed Nameof·~~uro~ O (To be aigned by those rendering the verdict if the~ ·;,t lllllllllmous.) Jurors' Printed Names I CWD- § v. § § WALLER COUNTY, TEXAS, ET. AL. § Defendants. § 506TH JUDICIAL DlSTRlCT JOINT MOTION FOR ENTRY OF AGREED FINAL JUDGMENT Plaintiff City of Hempstead ("Hempstead"), Plaintiff-Intervenor Citizens Against the Landfill in Hempstead ("CALH"), Defendant Pintail Landfill, LLC ("Pintail") and Defendant Waller County, Texas; Glenn Beckendorff, in his official capacity as County Judge of Waller County, Texas; John Amsler, Frank Pokluda, Jeron Barnett, and Stan Kitzman in their official capacities as County Commissioner for Waller County, Texas, (collectively "Waller County''), file this Agreed Joint Motion for Entry of Agreed Final Judgment. 1. On March 20, 2013, Hempstead filed suit against Waller County and Pintail for injunctive and declaratory relief. CALH filed its petition in intervention on March 21,2013. On April 11, 2014, Hempstead filed its Second Amended Petition for Declaratory and Injunctive Relief and CALH filed its Second Amended Petition in Intervention. 2. Pintail filed cross-claims and counter-claims, which were subsequently non-suited with the exception of Pintail's claim under the UDJA that Ordinance 2013-001 was valid. Agreed Joint Motion for Entry of Agreed Final Judgment Page 1 3. After a trial on the merits, the Court submitted the case to the jury on December 18, 2014. The charge and verdict is attached hereto as Exhibit A, and fully incorporated by reference. 4. On January 14, 2015, CALH filed its First Amended Motion to Enter Judgment on the Verdict and First Amended Motion to Enter Judgment on Outstanding Issues of Law. On January 15, 2015, Hempstead filed its First Amended Motion for Entry of Judgment. On January 16, 2015, Waller County and Pintail filed their Motions for Judgment Notwithstanding the Verdict and Responses to CALH's and Hempstead's Motions to Enter Judgment on the Verdict and Motions to Enter Judgment on Outstanding Issues of Law. 5. Subsequently, the Parties have entered into settlement negotiations and have reached a settlement agreement for entry of an agreed final judgment, resolving all issues in this lawsuit, except any claim, defense, or assertion, whether one or more, that has been or may in the future be raised in any forum, regarding the validity of Waller County Ordioance No. 2011-001 and/or its applicability to (a) Texas Commission on Environmental Quality MSW Registration NO. 40259 (Pintail Landfill Transfer Station), (b) Texas Commission on Environmental Quality MSW Permit Application No. 2377 (Pintail Landfill), and/or (c) all or any part of the 410.37 acre facility site described in such registration and permit application. The Parties request the Court to enter the judgment attached hereto as Exhibit B. 6. All Parties agree to the proposed Agreed Final Judgment. The Parties respectfully request that the Court grant their Joint Motion for Entry of Agreed Final Judgment. Agreed Joint Motion for Entry of Agreed Final Judgment Page 2 Respectfully subrni tted, Art Fertile James P. Allison Corey R. Ouslander J. Eric Magee couslander@olsonllp.com e.magee@allison-bass.com OLSON & OLSON, L.L.P. Allison, Bass & Associates, LLP Wortham Tower, Ste. 600 402 W. 12th St. 2727 Allen Parkway Austin, Texas 78701 Houston, Texas 77019 Phone: (512) 482-0701 Phone: (713) 533-3800 Facsimile: (512)480-0902 ::o•c;oz::=n Facsimile: (713)533-3888 ATTORNEYS FOR WALLER COUNTY DEFENDANTS V. Blayre Pefia Brent Ryan bpena@hslawmail.com bryan@msmtx.com Hance Scarborough McElroy, Sullivan, Miller, 400 W. 15th Street, Ste. 950 Weber & Olmstead, L.L.P. Austin, Texas 78701 P.O. Box 12127 Phone: 512-479-8888 Austin, Texas 78 711 Fascimile: 512-482-6891 fax Phone: (512) 327-8111 Facsimile: (512)327-6566 Carol Chaney ATTORNEYS FOR PINTAIL LANDFILL, LLC Carol.chaney@thechaneyfirm.net Law Office of Carol A. Chaney 820 13th Street P.O.Box966 Hempstead, TX 77445 Phone: (979) 826-6660 Fascimile: (979) 826-8989 ATTORNEYS FOR INTERVENORS/CITIZENS AGAINST LANDFILL By(j~fl& Agreed Joint Motion for Entry of Agreed Final Judgment Page 3 rJl~l '" r • ., ' KI 2 ;0 1O'Clock f M PATRICIA JAMES SPADACHENE I3YWALLE~ TEXAS DEPUTY CAUSE NO. 13-03-21872 CITY OF HEMPSTEAD, Texas, § IN THE DISTRICT COURT OF Plaintiff § § And § § CITIZENS AGAJNST THE LANDFILL IN § HEMPSTEAD, § Plaintiff Intervenor § § v. § WALLER COUNTY, TEXAS § WALLER COUNTY, TEXAS, COUNTY § JUDGE BLENN BECKENDORFF, § COMMISSIONER FRANK POKLUDA, § COlvi:MISSIONER STAN KITZMAN, § COlvi:MISSIONER JERON BARNET, § COlvi:MISSIONER JOHN AMSLER, and § 506th JUDICIAL DISTRICT PINTAIL LANDFILL, L.L.C. § Defendants. § CHARGEOFTHECOURT MEMBERS OF THE JURY: After closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room. This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this tdal. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed by the instructions in this charge. In discharging your responsibility on this jury, you will observe all the instructions which have previously been given you. I shill now give you additional instructions which you should carefully and stdctly follow during your deliberations. Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deh'berations for any reason, without permission from the Court. When you enter the jury room to deliberate, you must surrender your phone and any other electronic device. 1 Any notes you have taken are for your own personal use. Yau may take your notes back into the jury room and consult them during deliberations, but do not show or read your notes to your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on your independent recollection of the evidence and not be in:tluenced by the fact that another juror has or has not taken notes. You must leave your notes with the bailiff when you are not deliberating. I will wake sure your notes are kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the bailiff will collect your notes, unless you choose to keep them. When you are released from jury duty, the bailiff will promptly destroy your noteo, unless you have retained them, so that no one can read what you wrote. Here are the instructions for answering the questions. 1. Do not let bias, prejudice or sympathy play any part in your decision. 2. Base your answers only on the evidence admitted .in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom. 3. You are to make up your own minds about the facts. You are the sole judges of the credibility of the wi1llesses and the weight to give their testimony. But on matters of law, you must follow all of my instrurtions. 4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition. 5. Ali the questions and answers are important. No one should say that any question or answer is not important 6. Answer ''yes" or "no" to all questions unless you are told otherwise. A ''yes" answer must be based on a preponderance of the evidence. Whenever a question requires an answer other than ''yes" or "no," your answer must be based on a preponderance of the evidence. The term "preponderance of the evidence" means the greater weight of credible evidence presenied in this case. If yon do not fin.d tbat a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be ).li'OVed by a preponderance of the evidence, you must find that the fact is more likely true than not true. A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by wi1llesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. 2 7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have. 8. Do not answer questions by drawing straws or by any method of chance. 9, Do not trade your answers. For example, do not say, "I will answer this question your way if you answer another question my way." 10. The answers to the questions must be based on the decision of at leastlO of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority. As I have said before, if you do not follow these instructions, it will be juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties' money, and would require the taxpayers to pay for another trial. If a juror breaks any of these rules, tell that person to stop, and if such juror fails to do so, report it to the Court. 3 DEFINITIONS & lNSTRUCfiONS In a.tJBWering the questions below, please follow these definitions and instructions. 1. The term "Waller County" includes the Waller County Commissioners Court, Judge Glenn Beckendorff and Waller County Commissioners Frank Pokluda, Stan Kitzman, Jeron Barnett, ElJ1d John Amsler. 2. Waller County is a governmental body. 3. All questions for the Jury relate to the time period on or before February 13, 2013. 4 DEFINITIONS AND INSTRUCTIONS FOR QUESTION NUMBERS 1. 2, 3, AND 4 1, A governmental body may consult with its attorney in executive session to discuss the legal issues raised in connection with a proposed contract or a proposed ordinance, but it may not discuss non-legal matters. a, "Non-legal matters" include but are not limited to: (1) merits of enacting an ordinance; (2) merits of a proposed contract; (3) financial coiJBiderations of a proposed contract; or (4) matters of public policy; or (5) merits of an application. b. Legal issues include advice given to Waller County regarding the legal ramifications of facts and information and the legality of a proposed contract or proposed ordinance. 2. "Deliberation" means a verbal exchange during a meeting between a quoru.m of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business. 3, "Meeting" means: a A deliberation between a quorum of a governmental body or between a quorum of a goverrmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or coiJBidered or during which the governmental body takes formal action, or b. A gathering: i. That is conducted by the governmental body; ii. At which a quorum of members of the governmental body is present; ill. That has been called by the gove=ental body, and; iv. At which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the goverrmental body has supervision or control. 4. "Closed Meeting" means a meeting to which the public does not have access. 5. "Quorum" means a majority of a gove=ental body, 6. A "walking quorum" occurs when members of a governmental body gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly, and intentionally, discuss a public matter with a quorum of that body at a place other than1 a posted meeting., 5 QUESTION NUMBER 1 Do you find that the Waller County Commissioner's Court deliberated non-legal matters relating to Ordinance 2013-001 in a closed meeting? Answer: -==~~'"'e_S__ ("Yes" or "No") 6 QUESTION NIJMJIER 2 Do you find that the Waller County Commissioner's Court deliberated non-legal matters relating to the Host Agreement in a closed meeting? Answer: g-e) ("Yes" or ''No") 7 QUESTION NUM:BER 3 Do you find that at least three (3) members of tbe Waller County Commissioners Court englljSed in a walking quorum related to tbe following items below? (a) Host Agreement Answer:~ C'Yes" or"No") (b) Ordinance 2013-001 Answer: 'Lie) ("Yes" or ''No") Q 8 QUESTION NUMBER 4 "Negotiate" means to try to reach an agreement or compromise by discussion with others. Do you find that one or more members of the Waller County C.omroissioners Court acted as a committee, authorized by at least three (3) members of the Commissioners Court, to negotiate the terms of the following items before presentation to tbe Waller County Commissioners Court for a vote? Answer ''Yes" or "No" for each of the following. (a) Host Agreement Answer: .....,..j+e,..S<---- (''Yes" or ''No") (b) Ordinance 2013-001 Answer: -,;;a~e__.~c:.___ (''Yes" or ''No") 9 If you answered "yes" to Question Number 4(a) or 4(b), answer Question Numberf 5, ~ otberwise, do not answer Question Number 5. QUESTION NUMBER 5 Do you find tbat tbere were any committee meetings held that were not open to tbe public relating to the following? (a) Host Agreement Answer: _;~""-1'6"-<'--- ("Yes" or ''No") (b) Ordinance 2013-001 A.nswe~: ___,;~~f?,.:tS___ ("Yes" or ''No") 10 If you answered "yes" to Question Number 4(a) or 4(b), answer Question Number 6, otherwise, do not aoswer Question Number 6 and proceed to Question Number 7. INSTRUCTION FOR QUESTION NUMBER 6 A "rubber stamp" occurs when a committee's reco=endations are approved without meaningful discussion. QUESTION NUMBER 6 Do you find that the Commissioners' vote at the February 13, 2013 open meeting was a rubber stamp of the following items? (a) FiostAgreement Answer: -B;i4'e<:...;l 5c___ _ _ c"Yes" or ''No") (b) Ordinance 2013·001 Answer: --:1.-\:=l:-'f'-S-'----("Yes" or ''No") (j 11 INSTRUCTION FOR QUESTION NUMBERS 7 TIIROUGH 9 Public information means info:rmation that is written, produced, collected, assembled, or maintained uoder a law or ordinance or in connection with the transaction of official business. Public Information includes all documents, regardless of physical form or characteristics, created or received by Waller County in the transaction of public business. Public information includes, but is not limited to, e-mails, text messages, and other electronic recordings. Waller Couoty is required to preserve and manage its Public Information in accordance with applicable rules and laws governing the destruction and other disposition of state and local gove=ent records or Public Infonnation. Each Waller Couoty Commissioner and the Waller County Judge is the officer for public information and the custodian of the information created or received by that county commissioners' office. Waller County or the elected couoty officer for information of that elective county office may determine a time for which information that is not currently in Use will be preserved, subject to any applicable rule or law governing the destruction and other disposition of state and local gove=ent records or public information. As an officer for public information, each Waller Couoty Commissioner or County Judge is responsible for the release of public information. Each is required to: (1) make public information available for public inspection and copying; (2) carefully protect public information from deterioration, alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or rebind public information as necessary to maintain it properly. Each officer for public information is required to prominently display a sign containing basic information about the rights of a requestor, the responsibilities of a governmental body, and the procedures for inspecting or obtaining a copy of public information. The officer shall display the sign at one or more places in the administrative offices of the governmental body where it is plainiy visible to members of the public and employees of the gove=ental body whose duties include receiving or responding to requests under this chapter. As officers for public information, Waller County Commissioners and the Waller County Judge must promptly produce public information for inspection, duplication, or both upon request by any person for public infonnation. "Promptly" means as soon as possible uoder the circumstances, that is, within a reasonable time, without delay. If an officer for public information cannot produce public inforination for inspection or duplication within 10 business days after the date the information is requested, the officer must certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available. for inspection or duplication. 12 QUESTION NUMBER 7 Do you find that County Judge Glenn Beckendorff failed to comply with any of the following? (a) Protecting public information :from deterioration, alteration, mutilation, loss, or unlawful removal; (b) Displaying a sign containing basic information about the tights of a requestor, the responsibilities of a governmental body, and the procedures for inspecting or obtaining a copy of public information at one or more places in the administrative offices of the governmental body where it is plainly visible to members of the public and employees of the governmental body; (c) Promptly producing public information for inspection, duplication, or both upon request by any person for public information; (d) Certifying in writing to the requestor within 10 business days after the date the infonnation was requested, that public information requested could not be produced for inspection or duplication; (e) Notifying the requestor within 10 business days after the request of a date and hour witbin a reasonable time when the information would be available for inspection or duplication to the requestor. Answer: ~ .e5 13 QUESTION NU:MBER 8 Do you find that Waller County Precinct Twa Commissioner Fraiik Polduda failed to comply with any of the following? (a) Protecting public information from deterioration, alteration, mutilation, l,oss, or unlawful removal; (b) Displaying a sign containing basic information about the rights of a requestor, the responsibilities of a governmental body, and the proc~dures for inspecting or obtaining a copy of public information at one or more places in the administrative offices of the governmental body where it is plalnly visiple to members of the public and employees of the governmental body; (c) Promptly producing public information for inspection, duplication, or both upon request by any person for public information; (d) Certifying in writing to the requestor within 10 business days after the date the information was requested, that public information requested could not be produced for inspection or duplication; (e) Notifying the requestor within 10 business days after the request of a date and hour within a reasonable thne when the information would be available for inspection or duplication to the requestor. Answer: .......;8:,re.e,_,.)_ _ _ (''Yes" or ''No") 14 QUESTION NUMBER 9 Do you :find that Waller County Precinct Four Commissioner Stan Kitzman failed to comply with any of the following? (a) Protecting public information from deterioration, alteration, mutilation, loss, or unlawful removal; (b) Displaying a sign containing basic information about the rights of a requestor, the responsibilities of a governmental body, and the procedures for inspecting or obtaining a copy of public information at one or more places in the aclmini